Misconduct Investigations: Conducting Legal and Effective Interviews

When an employee is accused or suspected of misconduct—for example, workplace alcohol or drug use, theft—an in-depth interview with the employee is essential.

But if interviews are conducted improperly, liability may exist for:

False imprisonment

False arrest

Intentional infliction of emotional distress

Invasion of privacy

Violation of labor relations statutes

In addition, state employers may be at risk of violating the Fourth and Fifth Amendments to the U.S. Constitution.

To avoid liability under the first four listed theories, you must simply conduct a voluntary interview presenting known facts, requesting an explanation, and asking only business related questions. Naturally, if the policy believed to be violated is one that is unlawful, the interview, no matter how carefully conducted, is likely to lead to litigation. To avoid liability for violation of labor relations statutes, you must be well-versed in the applicable law.

Here are some pointers for conducting fair, effective interviews to get to the bottom of suspected workplace misconduct.